President Trump’s move Wednesday to limit the power of states to block oil and gas pipelines is representative of what critics say is his administration’s hypocritical approach to “cooperative federalism.”
The Trump administration has rejected former President Barack Obama’s muscular approach of using federal government power to combat climate change — deferring action to states to plan for reducing greenhouse gas emissions in the electricity sector.
But in other cases, Trump has bristled at what he views as overly aggressive efforts by progressive states to enforce and set environmental rules that impose barriers to his “energy dominance” agenda.
“They have rendered the term ‘cooperative federalism’ meaningless,” said David Konisky, an associate professor at Indiana University’s School of Public and Environmental Affairs, making light of a term frequently used by Trump officials to describe his deregulation agenda. “The idea is we are going to delve more and more authority to state governments except in cases where it contradicts our own policy agenda.”
Trump signed an executive order on Wednesday designed to limit the instances in which blue states such as New York can reject pipeline projects using authority granted to states in Section 401 of the Clean Water Act. Section 401 allows states to deny permits if leaks from an energy infrastructure project could harm nearby streams or lakes.
The Trump administration, Republican lawmakers, and industry representatives argue some states are abusing the authority and rejecting permits for political reasons, as part of a broader opposition to fossil fuel infrastructure due to climate change.
The administration of New York Gov. Andrew Cuomo, which has banned fracking, used its Clean Water Act power to block construction of the 125-mile Constitution Pipeline from Pennsylvania to deliver natural gas to the state, despite the project earning approval in 2014 from federal regulators.
“The administration would argue, legitimately, this Clean Water Act [executive order] is the epitome of collaboration with the states,” said Christopher Guith, acting president of the U.S. Chamber of Commerce’s Global Energy Institute. “The administration is saying, ‘this is your authority and we want to make sure you are applying it equally without arbitrary decisions from one state to the next.'”
In another case cited by industry, Washington state — under Democratic Gov. Jay Inslee, now a 2020 presidential candidate — used its Clean Water Act authority to stop a proposed coal export terminal.
“We are not going to make infrastructure decisions that will lock us in for 50 or 60 years that will prevent us from getting to a fossil fuel-free economy by mid-century,” Inslee said during an appearance Wednesday at the Columbia Global Energy Summit, speaking generally about his opposition to building pipelines and other energy infrastructure projects.
Although states will retain the right to veto projects absent action from Congress, critics say Trump’s move, like others before it, undermines the traditional collaborative role between states and the federal government on protecting the environment.
The Western Governors Association, which has Republican members, has warned Trump against doing anything to upset the traditional collaboration between states and the federal government on environmental reviews.
“The 401 authority is incredibly important to states,” said David Hayes, executive director of the State Energy and Environment Impact Center, which is helping state attorneys general challenge Trump’s energy agenda in court. “It is deeply coercive to have the federal government selectively stiffing states on their key role in implementing portions of our bedrock environmental laws.”
Republican allies and the energy industry argue it’s not ideologically inconsistent for Trump to strive to correct what they say is limited misuses of state power.
“As a general matter, Republicans would want to have flexibility for states to address certain issues,” said Tony Clark, a former Republican member of the Federal Energy Regulatory Commission, which reviews interstate pipeline applications. “The problem that makes this one so tough is you have a small handful of states spoiling it for the rest of the states. When a few states abuse the authority and use it in an arbitrary and capricious manner, it becomes a poster child.”
Critics, however, say other Trump administration actions demonstrate its hostile view of states that interfere with his political goals.
For example, the Trump administration is planning to revoke a waiver granted under the Clean Air Act to California, which is also used by 13 other states, allowing them to set fuel efficiency standards tougher than federal government rules.
The administration is also considering limiting states’ power to review federal plans for oil and gas drilling off their coasts, according to the Los Angeles Times.
The Interior Department in the coming weeks will propose a revised version of a draft massive offshore drilling plan that was opposed by governors and legislators of both parties along the Atlantic and Pacific coasts.
In cases where Trump has embraced state interests, critics say, it’s been to allow Republican-led fossil fuel-dependent states to propose less stringent environmental rules.
The Trump Environmental Protection Agency, for example, has proposed a replacement for Obama’s Clean Power Plan that gives more power to states to regulate coal plants, after Republican state leaders complained the prior administration’s rules were too stringent.
“Instead of pulling up the laggards and unleashing the leader states to do more, Trump is empowering the laggard states while blocking the leaders [like California],” said Jody Freeman, a Harvard Law School professor who served as counselor for energy and climate change in the Obama White House. “It’s a remarkable turnaround.”
